The multimember district: a study of the multimember district and the Voting Rights Act of 1965.

• Author: Smith, George Bundy

1. INTRODUCTION

   During the 1960s, the combination of two struggles gave African Americans the opportunity to fully participate in the political process. The first was the reapportionment revolution that began with Baker v. Carr. (1) The second was the Voting Rights Act of 1965. (2) One outcome of those struggles was the multimember district, which many saw as an effort to continue the obstacles which prevented African Americans from effectively voting. A multimember district may be defined as one in which the same voters elect more than one representative to serve a geographical area that could be divided into several areas, each represented by a single person. (3) It is clear that, in some instances, the multimember district is one of the methods used to thwart Black gains in voting. (4) At the same time, the Supreme Court has repeatedly held that multimember districts are not per se unconstitutional. (5) This thesis examines the multimember district with respect to the dilution of African American voting strength. The inquiry seeks to answer the following questions: (1) What is the present state of the law with respect to multimember districts? (2) Have court decisions with respect to multimember districts advanced the objectives of the Voting Rights Act of 1965?

   After a brief introduction on the history of African American voting in this country, the thesis proceeds to a discussion of the multimember district, and concludes that while the objective of the 1982 Amendment to the Voting Rights Act was clear, the achievement of the objective has been complicated by differing views in the Supreme Court on what was meant by Congress and how Congress intended to implement the Amendment. The objective has also been complicated by the questionable introduction of equal protection jurisprudence. Finally, the study concludes that while huge gains have been made to protect the right of African Americans to vote, the struggle is far from over.

2. THE VOTING RIGHTS ACT OF 1965

   Prior to the Civil War, there were numerous restrictions on African American voting. Only five states had no racial restriction on the right to vote. (5) Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. (6) In twenty-three states, the right to vote was limited to White males. (7) The passage of the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution gave African Americans the legal right to vote. (8) Nevertheless, efforts were made to intimidate and prevent African Americans from voting. (9) In the two decades following the end of Reconstruction, the African American in the South was disenfranchised. (10)

   Beginning in 1890, efforts were made throughout the South to give the disenfranchisement of African Americans a legal foundation. (11) The efforts occurred despite the fact that the Fifteenth Amendment to the Constitution states that the right to vote "shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." (12) Through the last decade of the nineteenth century, and the first few decades of the twentieth, many barriers were erected in order to nullify that provision. Literacy tests, flexible and arbitrary qualifications for registration, property qualifications, grandfather clauses, white primaries, and other obstacles resulted in the wholesale denial of the vote to African Americans in some parts of the South. (13) In 1964, the Attorney General of the United States gave estimates of the percentages of voting-age African Americans who were registered to vote in several southern states: Mississippi, less than seven percent, Alabama, less than twenty percent, and Louisiana, less than thirty-two percent. (14)

   In 1961 the United States Commission on Civil Rights gave the following comparisons between Whites and Nonwhites of voting age who were registered to vote:

   State % Whites Registered % Nonwhites Registered Alabama 63.6 13.7 Arkansas 60.9 37.7 Florida 69.5 39.0 Georgia 49.8 28.4 Louisiana 77.0 30.9 Mississippi -- 6.1 North Carolina 92.838.2 South Carolina 84.54.7 Texas 50.9 33.7 Virginia 46.2 23.0 (15) Prior to the passage of the Voting Rights Act of 1965, African Americans in the South had waged a largely unsuccessful struggle to secure the right to vote. Those efforts included lawsuits such as Nixon v. Herndon, (16) in which the Supreme Court held that the denial of the right to vote to an African American in a Texas primary was a violation of the Equal Protection Clause of the Fourteenth Amendment, (17) and Smith v. Allwright, (18) in which the Supreme Court ruled that Texas could not authorize the exclusion of African Americans from primaries. (19) The fight for the right to vote also included legislation in 1957 and 1960 which sought to eliminate barriers that prevented African Americans from voting. (20)

   The Voting Rights Act of 1965 was designed to give meaning to the Fifteenth Amendment. (21) First, a portion of the Act was applied across the entire United States. A Senate report which preceded the 1982 Amendment stated that the Voting Rights Act provided for "a general prohibition of discriminatory practices nationwide." (22) Thus, section 2 of the Act prevented a State or its subdivisions from imposing any practice or procedure which denied a person the right to vote on account of race or color. (23) Second, in specified areas of the South and elsewhere, the Act provided for a number of remedies--including the suspension of certain tests that were used as obstacles for the registration of African Americans, the use of federal examiners when necessary to protect the right to vote, and a requirement that certain covered jurisdictions preclear, or submit for approval, any change in election law to the Attorney General of the United States or to the United States District Court for the District of Columbia. (24) In 1965, these covered jurisdictions included Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, Virginia, twenty-six counties in North Carolina, three counties in Arizona, one county in Hawaii, and one county in Idaho. (25)

   The results of the Voting Rights Act of 1965 were both immediate and dramatic. Over one million African Americans were registered to vote between 1965 and 1972. (26) Despite these gains, discrimination against African Americans persisted. In many areas, the votes of African Americans were diluted by concentrating them in one or two districts, or by placing them in multimember districts. (27) A 1982 Senate Report indicated some of the problems. It stated:

   Following the dramatic rise in registration, a broad array of dilution schemes were employed to cancel the impact of the new black vote. Elective posts were made appointive; election boundaries were gerrymandered; majority runoffs were instituted to prevent victories under a prior plurality system; at-large elections were substituted for election by single-member districts, or combined with other sophisticated rules to prevent an effective minority vote. The ingenuity of such schemes seems endless. Their common purpose and effect has been to offset the gains made at the ballot box under the Act. (28) Beginning with its historic decision in Reynolds v. Sims, (29) the Supreme Court began to address the multimember district and its effect on minority voting. In Reynolds, the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment required that the seats of both houses of a state legislature be apportioned as nearly as possible on an equal population basis. (30) While multimember districts were not the focus of that decision, the Court indicated that they might be appropriate in some circumstances. (31) In fact, the Supreme Court noted that one house of a state legislature could be composed entirely of single-member districts while another house could have at least some multimember districts. (32) In Lucas v. Forty-Fourth General Assembly of Colorado, (33) decided on June 15, 1964--the same date as Reynolds--the Supreme Court declined to rule that multimember districts in Colorado were per se unconstitutional. (34)

   By 1965 in Fortson v. Dorsey, (35) the Supreme Court reiterated the view that multimember districts were not per se illegal. In Fortson, the plaintiffs made a facial challenge to Georgia's 1962 Senatorial Reapportionment Act. (36) The Act apportioned Georgia's fifty-four senators among 159 counties. (37) Thirty-three of the senators were chosen from single-member districts, which were each composed of one to eight counties. (38) The other twenty-one senators were elected in multimember districts in the seven counties with the largest populations. (39)

   In reversing the three-judge district court, (40) the Supreme Court emphasized the fact that the ratio between the population of the districts and the number of senators that they elected was substantially uniform and that each person's vote was equal to that of any other. (41) The Court termed the plaintiffs' contention that the unanimous choice of voters in a single district could be submerged by the votes of others in a multimember district as "hypothetical." (42) The decision left room for an argument that the multimember district was being used to negate the votes of a racial or political bloc, stating that "[i]t might well be that, designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." (43) The Court stated that the record before it did not support such a claim, stressing that counsel for the plaintiffs stated that they were not relying on this argument. (44)

   In dissent, Justice Douglas contended that the equal protection of the laws was denied when the votes of persons in one district could be nullified by the votes of persons in other districts. (45) This was...